Fordham Law Review Fordham Law Review

Volume 64 Issue 4 Article 24

1996

"I Know the Child Is My Client, but Who Am I?" "I Know the Child Is My Client, but Who Am I?"

Robert E. Shepherd, Jr.

Sharon S. England

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Recommended Citation Recommended Citation Robert E. Shepherd, Jr. and Sharon S. England, "I Know the Child Is My Client, but Who Am I?", 64 Fordham L. Rev. 1917 (1996). Available at: https://ir.lawnet.fordham.edu/flr/vol64/iss4/24

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"I Know the Child Is My Client, but Who Am I?" "I Know the Child Is My Client, but Who Am I?"

Cover Page Footnote Cover Page Footnote Professor Shepherd is a Professor of Law at the T.C. Williams School of Law of the University of Richmond. He earned his B.A. and LL.B. at Washington and Lee University. Ms. England received her B.S.W. from the Pennsylvania State university and her M.S.W. from the University of Maryland and is a December 1995, graduate of the T.C. Williams School of Law. She has been a practicing social worker and social work instructor and is President of the Richmond CASA Board of Directors.

This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol64/iss4/24

"I KNOW THE CHILD IS MY CLIENT,BUT WHO AM I?"

Robert E. Shepherd, Jr. and Sharon S. England*

INTRODUCrION

Melinda, a neglected child-Melinda entered the legal system as aneglected child in the early 1970s.1 Melinda's mother, who hadbeen diagnosed as schizophrenic, suffered from numerous healthproblems, and was unable to provide a stable living environment forMelinda and her three younger brothers and sisters. The childrenwere ultimately removed from their mother's care pursuant to thestate's child neglect laws. While under the jurisdiction of the juve-nile court, Melinda lived in several different foster homes, manytimes being separated from her younger siblings. At age sixteen,she was placed in a group home. "I did not want to be in a grouphome," Melinda said, "but nobody had asked me." She was finallyreleased from court jurisdiction into her aunt's care when she waseighteen-and-a-half years old. Nearly two decades after Melinda in-itially entered the legal system, she can still remember the name ofthe lawyer appointed to represent the children in the child neglectproceedings. "I will never forget him, I thought he was terrible. Hedidn't spend any time with us. I saw him once outside of the court-room, in the waiting room. He didn't know our side of the story,"Melinda said. "He didn't know what we wanted to do. He neverasked me. I didn't know how the court procedure worked. I didn'tknow if I was sending my mother to jail or sending us back home toher. No one ever told me what was being decided."

Jose R., charged with possession of stolen property-"I've been tocourt three times already and I just want to get it over with. I'mscared and I don't know if they're going to send me to jail. I don'tknow who my lawyer is. He wasn't there when the judge called mycase."

2

Jamie G., a 16-year-old convicted of assault and larceny-"Mylawyer doesn't know nothing about me, or what I do. She only metme twice for a few minutes and never returned my phone calls. She

* Professor Shepherd is a Professor of Law at the T.C. Williams School of Lawof the University of Richmond. He earned his B.A. and LL.B. at Washington and LeeUniversity. Ms. England received her B.S.W. from the Pennsylvania State Universityand her M.S.W. from the University of Maryland and is a December 1995, graduate ofthe T.C. Williams School of Law. She has been a practicing social worker and socialwork instructor and is President of the Richmond CASA Board of Directors.

1. Melinda's name has been changed to protect her identity. This discussion ofher experience comes from an interview conducted by Ms. England on June 17, 1992.

2. ABA Juvenile Justice Center, Juvenile Law Center and Youth Law Center, ACall for Justice: An Assessment of Access to Counsel and Quality of Representationin Delinquency Proceedings 3 (1995) [hereinafter A Call for Justice].

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just started saying stuff to the judge about what I needed. What Ineeded was a new lawyer.",3

M ELINDA, Jose, Jamie, and thousands of other dependent,abused, neglected, delinquent, and status offending children like

them came within the jurisdiction of the juvenile and family courts inthis country at a time of tremendous growth and change in juvenileand family law. The diverse, and sometimes incompatible, interpreta-tions of child and family rights emanating from these courts resultedin disparate and inequitable treatment of children and families. Onesignificant contributor to such treatment has been the inconsistent ap-proach taken in the assignment of lawyers to represent children, andthe great confusion about the role of attorneys in representing chil-dren in the courts.

There is probably no role given to a lawyer that is more challengingthan that of appearing as counsel for a child in court. Whether ap-pearing for the child in an abuse, neglect, dependency, or custody pro-ceeding, defending a juvenile charged with delinquency or with astatus offense, or representing a child in a mental commitment orother matter, an attorney faces enormous challenges. Nowhere is anattorney invited to use all of his or her skills as completely as whendealing with the lives of children and families.

Unfortunately, it is this very same awesome responsibility which alltoo often creates confusion in the minds of new and veteran attorneysalike as to what their roles are when appearing in court on behalf of achild. Some lawyers believe that in all instances of juvenile represen-tation, they are to act in the "best interests of the child." In delin-quency proceedings in particular, many lawyers feel conflicted and areunsure of the role they are supposed to play. Is the attorney to "zeal-ously defend" the rights of a juvenile client even if it means that afinding of not guilty will remove the immediate possibility of any help-ful intervention in the life of that child? What is the role of the par-ents? How should counsel resolve the often conflicting interests ofparent and child, especially when he or she has been retained by theparent? From whom is the attorney to receive guidance and directionfor representing an infant or very young child? When acting in a cus-tody or abuse and neglect proceeding, what responsibility does coun-sel have to represent the expressed wishes of the child when thoseinterests are in conflict with what counsel believes to be in the "bestinterests of the child"? What is the role of the attorney for the childwho is the subject of a custody dispute?

As increasing poverty, violence, child maltreatment, and substanceabuse complicate the problems of children and families involved incourt proceedings, it is imperative that counsel appearing in court fora child be equipped to handle these complexities. If the role of the

3. Id. at 36.

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attorney is to have any meaning at all, it is imperative that counselappearing in court for a child understand his or her role and how itmay vary and change depending upon the type of proceeding or thedevelopmental stage and competency of the child. The role of thelawyer in an abuse and neglect proceeding representing a preverbalinfant may be very different from the role of an attorney representinga child charged with a criminal offense or from counsel representing averbal but "impaired" child in a custody dispute. The goal of this Ar-ticle is to attempt to define the roles that attorneys representing chil-dren assume in the courts and to offer practical suggestions about howto assure the effective performance of those roles.

I. HISTORICAL DEVELOPMENT OF THE CHILD'S RIGHT

TO A LAWYER

Children throughout history were given little special attention bythe legal system. Their interests were invariably assumed to bewrapped up in the interests and desires of the adults in their lives.Until the turn of the twentieth century, they were most likely the sub-jects of occasional court proceedings, and seldom parties or meaning-ful participants. The coming of the juvenile court initiated a new erain the legal system's focus on children. That court took a new, albeitlargely paternalistic, look at the interaction between youth and thelaw. In a real sense, however, the juvenile court was considered to be"antilegal." The court encouraged informality and dependency onnonlegal resources. 4 By focusing on the "best interests" or welfare of,these children, the "child savers" perceived no duty to formulate legalregulations, thus effectively "disenfranchising" children of their legalrights.5 Lawyers were seen as serving little purpose other than to ob-struct and delay.6 "Many would say that juvenile courts in this periodwere not really courts at all. There was little or no place for law, law-yers, reporters and the usual paraphernalia of courts .... ." This in-formality of juvenile court proceedings was almost universally upheldin appellate court decisions.8 Therefore, the juvenile court, the veryinstitution responsible for protecting children and families by oversee-ing the child welfare and juvenile criminal justice systems, and holdingthem accountable, was itself operating largely without legal oversight.9

4. See Anthony M. Platt, The Child Savers: The Invention of Delinquency 137(2d ed. 1977).

5. Id. at 67.6. Jacob L. Isaacs, The Role of the Lawyer in Representing Minors in the New

Family Court, 12 Buff. L. Rev. 501, 503 (1963).7. Walter Wadlington et al., Cases and Materials on Children in the Legal System

198 (1983).8. See, e.g., Lindsay v. Lindsay, 257 IM. 328, 335 (1913) (upholding statute that

limited a child's right to a jury trial because the proceeding was not the one in which ajury trial is guaranteed); Commonwealth v. Fisher, 213 Pa. 48 (1905) (same).

9. Wadlington, supra note 7, at 198.

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In spite of the overall complexity of the laws affecting children andtheir families, the United States Supreme Court has granted the rightto counsel and other significant due process protections only to thosechildren accused of delinquent acts. In 1966, the Court intimated inKent v. United States' ° that children have enforceable constitutionalrights, including the right to be represented by counsel in cases involv-ing juvenile delinquency." The Court also acknowledged that manyof the promises of the juvenile court system had not materialized."[TIhe child receives the worst of both worlds ... he gets neither theprotections accorded to adults nor the solicitous care and regenerativetreatment postulated for children."' 2 In the following year, the Courtrejected the traditional doctrinal supremacy of parens patriae in thehistoric case of In re Gault.3 The Court held that "neither the Four-teenth Amendment nor the Bill of Rights is for adults alone."' 4 " TheCourt has not extended the right to counsel articulated in In re Gaultto any other proceeding in the intervening years.' Many child advo-cates have argued, however, that the provision of legal counsel is theonly effective means for securing legal rights in this country, and that"[i]ndependent counsel.., should be required in any case where achild's interests are being adjudicated.' 6

Legislation expanded children's right to legal representation incourt proceedings in the era following In re Gault. The most logicalstarting point for the further expansion of children's rights to counselwas in child protection proceedings where the child was alleged to beabused, dependent, or neglected. By 1973, however, only two states,Colorado and New York, required the appointment of a lawyer guard-ian ad litem ("GAL") in every case of child abuse.' 7 In 1974, in acommendable bipartisan effort, the United States Congress respondedto growing demands for legal representation of children in such pro-ceedings by enacting the Child Abuse Prevention and Treatment Act("CAPTA").' 8 Hailed as a "milestone in the emergence of child rights

10. 383 U.S. 541 (1966).11. Id. at 557, 561-62.12. Id. at 556. Because the Court ultimately decided the case on the basis of Dis-

trict of Columbia law, the due process discussions were dicta. They were, however,predictive of later cases.

13. 387 U.S. 1 (1967).14. Id. at 13.15. See, e.g., Parham v. J.R., 442 U.S. 584 (1979) (refusing to extend the due pro-

cess protections in juvenile justice cases to mental health commitment proceedings).16. Hillary Rodham, Children Under the Law, in The Rights of Children, 43 Harv.

Educ. Rev. 487, 509 (1973).17. Hearings on S. 1191 Before the Subcomm. on Children and Youth of the Senate

Comm. on Labor and Public Welfare, 93d Cong., 1st Sess. 249 (1973) (statement ofBrian Fraser, Staff Attorney, National Center for the Prevention and Treatment ofChild Abuse and Neglect).

18. Pub. L. 93-247, 88 Stat. 4 (1974) (codified at 42 U.S.C. §§ 5101-5106(h)(1988)).

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in the eyes of the law,"'19 CAPTA established the National Center onChild Abuse and Neglect ("NCCAN"), which allocated federal grantsto states for the development of child abuse and neglect programs. Toqualify for federal grants prior to 1988, states were required to meetseveral conditions, including the appointment of GALs in every judi-cial proceeding involving an abused or neglected child. 0 "The ration-ale for the appointment of a GAL in civil and criminal abuse andneglect proceedings was that each child involved in judicial proceed-ings needs an independent voice to advocate for his/her 'best inter-ests.' "21 The federal mandate, however, did not require that theseGALs be attorneys, and little of NCCAN's funding was directed tothe cost of providing attorney representation for children in child pro-tection proceedings.'

Within two years of the enactment of CAPTA, nineteen states re-quired the appointment of GALs in child protection proceedings,three states permitted the appointment of such a representative, andeighteen states -either required or permitted the appointment of GALswhen certain conditions were met.23 Although all states currently pro-vide for the appointment of GALs in child protection proceedingseither through statute, regulation, -or court practice, an independentstudy by CSR, Inc., found that the congressional mandate for theGAL representation of abused and neglected children has not beenmet in an adequate fashion.24 "[I]n some court systems there is a per-sistent disregard for Federal (and often State) legislative intent whichis not warranted by occasional case circumstances or resource limita-tions."25 In eight states, appointment of a GAL is discretionary orrequired only in some cases, resulting in a substantial number ofabused and neglected children in these states not being represented.26

19. U.S. Dep't of Health & Human Services, Final Report on the Validation andEffectiveness Study of Legal Representation Through Guardian Ad Litem 1-1 (1994)[hereinafter Final Report].

20. 42 U.S.C. § 5106a(b)(6) (1988).21. Final Report, supra note 19, at 1-2.22. Howard A. Davidson, The Guardian Ad Litem: An Important Approach to the

Protection of Children, in Protecting Children Through the Legal System 836-37(1981).

23. Brian G. Fraser, Independent Representation for the Abused and NeglectedChild The Guardian Ad Litem, 13 Cal. W. L. Rev. 16, 42-43 & n.175 (1977).

24. Final Report, supra note 19, at 1-2; U.S. Dep't of Health & Human Services,National Study of Guardian Ad Litem Representation 41 (1990) [hereinafter NationalStudy].

25. National Study, supra note 24, at 43.26. Id. at 9.

In Arkansas, for example, appointment [of a GAL] is required only if cus-tody is in question. Georgia, Louisiana, and Wisconsin require appointmentonly in termination of parental rights cases. Georgia law also mandates ap-pointment when the child has no parent and Wisconsin requires representa-tion when the child is removed from the home or in cases involving custodyor abuse restraining orders. Indiana requires GAL appointment in cases oftermination of parental rights, Fetal Alcohol Syndrome, drug-addicted

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In those states requiring the appointment of GALs in child protectionproceedings, many children still are not represented.27

The appointment of counsel for young people is even less frequentin other proceedings involving children. For example, few states pro-vide for lawyers for children involved in custody contests.2 Florida,Louisiana, Minnesota, Missouri, South Dakota, and Tennessee requirethe appointment of a GAL or an attorney where allegations of abuseor neglect are involved.2 9 Alabama gives a court discretion to makean appointment when "the court determines that representation of the[minor's]interest otherwise would be inadequate."3 Oregon providesfor an appointment "if requested ... by one or more of the chil-dren."'" Vermont mandates an appointment whenever a child iscalled as a witness in custody or child support matters.3 Wisconsinalone requires counsel for all children in contested custodyproceedings.3

With the exception of those who have fought hard for the enact-ment of laws and the development of standards for the representation

newborns and whenever an abuse or neglect petition is contested. In Colo-rado, GAL representation is mandatory in abuse cases but discretionary inneglect cases. In Delaware, Indiana, and Texas, appointment of a GAL iscompletely at the discretion of the presiding judge."

Id.27. Id. at 11-14. The authors cautioned readers to be careful in interpreting this

data, because the estimates were based on best guesses and not precise counts, andthe "respondents may have been biased to overestimate the proportion of childrenreceiving GAL representation." Id. at 14. The reports were not independently veri-fied. Id. Alabama, Alaska, Connecticut, District of Columbia, Hawaii, Illinois, Iowa,Kansas, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, NewHampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, RhodeIsland, South Carolina, Vermont, West Virginia, and Wyoming report that 100% ofabused and neglected children were represented. Id. at 11-13. Arizona, Arkansas,Colorado, Maine, Minnesota, Mississippi, North Carolina, Ohio, Texas, Utah, Vir-ginia, and Wisconsin estimated that 90% or more of the abused and neglected chil-dren in courts were represented. Id Georgia, Kentucky, Pennsylvania, South Dakota,Tennessee, and Washington estimated over 80% of the children were represented. IdCalifornia and Indiana estimated that 78% of the children were represented, whileOregon estimated 69% of the children were represented. Id. at 11-12. Idaho esti-mated that 60% were represented, and Louisiana estimated 54% of the children beingrepresented. Id. at 11. Florida estimated 49% of its abused and neglected childrenwere being represented, and Nevada estimated 32%. Id. at 11-12. Delaware esti-mated the lowest number of abused and neglected children being represented, a mere22%. Id. at 11.

28. American Academy of Matrimonial Lawyers, Representing Children: Stan-dards for Attorneys and Guardians Ad Litem in Custody or Visitation Proceedings 11(1995) [hereinafter Representing Children].

29. Fla. Stat. Ann. § 61.401 (West Supp. 1996); Minn. Stat. Ann. § 518.165(2)(West 1990); Mo. Ann. Stat. § 452.423(1) (Vernon Supp. 1996); S.D. Codified LawsAnn. § 25-4-45.4 (1992); Tenn. Ct. R. Ann., R. Juv. Proc. 37(c) (1995).

30. Ala. Code § 26-2A-52 (1992).31. Or. Rev. Stat. Ann. § 107.425(3) (1990).32. Vt. Stat. Ann. tit. 15, § 594(a) (1989).33. Wis. Stat. Ann. § 767.045(1)(a)(2) (West 1993 & Supp. 1995).

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of children, the nation continues to be ambivalent regarding the provi-sion of quality legal representation to children. Such ambivalence hascontributed to role confusion for attorneys, GALs, and other childadvocates, and, consequently, turmoil for their vulnerable child cli-ents. This uncertainty was demonstrated when Congress first enactedCAPTA with an unfunded mandate for the appointment of GALs inchild protection proceedings. 4 It was again illustrated by numerousfederal and state court rulings granting GALs absolute immunity fromcivil rights suits and negligence claims.35 Finally, the ambivalence wasdramatically demonstrated during 1995, when Congress threatenedsubstantially to reduce funding for CAPTA and eliminate the federalrequirement for the appointment of GALs in child protection pro-ceedings. On January 4, 1995, the new Congressional majority intro-duced the "Personal Responsibility Act,"36 which purported to restorethe American family, reduce illegitimacy, control welfare spending,and reduce welfare dependence. The bill, which was approved andpassed on to the Senate in two short months, also would have substan-tially limited federal funding for AACWA, CAPTA, and other na-tional child support programs.3 7 By converting federal funding forfoster care and abuse programs into block grants, states would be per-mitted to make substantial cuts in the services they provide to childrenand families. National programs and standards, including the require-ment that GALs be appointed to represent children in child protec-tion proceedings, would be eliminated. 38 The House ofRepresentatives took this action in spite of decades of testimony onthe increase in child abuse, neglect, and child fatality incidents, and

34. Davidson, supra note 22, at 836-37.35. See infra part VII.A.36. H.R. 4, 104th Cong., 1st Sess. (1995).37. Such programs include Title IV, Child Welfare Services, and Family Preserva-

tion and Support Services Programs ("SSI").38. Miriam A. Rollin, Legislative Update: Selected Provisions of H.R. 4, 17 The

Guardian, No. 2, at 16 (National Association of Counsel For Children, Spring 1995).Title II of H.R. 4 eliminated federal guarantees for foster care and adoption assistancefor children who cannot live safely at home, replaced these programs, along with Fam-ily Preservation and Support, Independent Living, Child Abuse Prevention and Treat-ment, and several other programs for abused and neglected children (and those at riskof abuse and neglect) and substituted a Child Protection block grant to states, whichresulted in an estimated cut of $3.5 billion over five years. Il The bill allowed states,after fiscal year 1997, to reduce state spending for these purposes. Id. It also allowedthe states to transfer up to 30% of Child Protection Block Grant funds to other blockgrants, eliminated enforceable protections for children, including requirements thatchildren get services before entering foster care, be placed in licensed foster homesand group homes, have case plans and periodic case reviews to ensure progress to-wards permanency, and have a GAL when they have been abused or neglected. Id. Itfurther repealed the Multi-Ethnic Placement Act and specified that a state may notdelay or deny placement of a child on the basis of race, color, or national origin (asdid the 1994 Act), but it did not specify, as did the 1994 Act, that a state may considerthe cultural, ethnic, or racial background of the child as one of the factors used todetermine the best interests of the child. Id.

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documented evidence of the states' child welfare systems' inability toprovide quality rehabilitative services. 39 The Senate Finance Commit-tee refused to include the Child Protection Block Grant in their ver-sion of the bill that was passed on August 8, 1995. 40 A jointconference committee must generate a compromise between the Sen-ate and the House regarding the future funding of these programs.

II. STUDIES OF THE EFFECTIvENESS OF LAWYERS FOR CHILDREN

Even where attorneys are provided for children in legal proceedingswhere their interests are involved, several empirical studies suggestthat competent legal advocacy evades many children.41 According toHoward A. Davidson, the question as to whether children should beprovided legal representation in legal proceedings is far from settled,but it is clear that "children ... often lack aggressive, appropriatelytrained, competent lawyer advocacy."'42 Sadly, Davidson's assessmentappears to personify Melinda and Jose's juvenile and family court to-day. Two decades after Melinda entered the juvenile court system, aprivate attorney's description of that same juvenile court suggests thatMelinda's experiences have not become a thing of the past.4 3 Thisattorney complained that many of her colleagues still rarely talk totheir child clients and that others openly brag about postponing andadjourning child protection and foster care hearings.44 Some attor-neys even increase their fees while unnecessarily delaying dispositionsand consequently prolonging the court process for their child clients.45

The attorney continued, "A number of these people are extremelyskillful in finding any way possible to get a case adjourned because it'sanother $125 in their pocket. 46

39. Id.40. 141 Cong. Rec. S11,806 (daily ed. Aug. 8, 1995) (statement of Sen. Simpson).41. See Fimal Report, supra note 19; National Study, supra note 24; A Call For

Justice, supra note 2; Jane Knitzer & Merril Sobie, Law Guardians in New York State:A Study of the Legal Representation of Children (1984) [hereinafter Law Guardians];U.S. Dep't of Health & Human Services, CSR, Inc., National Evaluation of the Im-pact of Guardians Ad Litem in Child Abuse or Neglect Judicial Proceedings (1988)[hereinafter National Evaluation]; Robert F. Kelly & Sarah H. Ramsey, MonitoringAttorney Performance and Evaluating Program Outcomes: A Case Study of Attorneysfor Abused and Neglected Children, 40 Rutgers L. Rev. 1217, 1219 (1988) [hereinafterKelly & Ramsey, Monitoring]; Donald N. Duquette & Sarah H. Ramsey, Representa-tion of Children in Child Abuse and Neglect Cases: An Empirical Look at What Con-stitutes Effective Representation, 20 U. Mich. J.L. Ref. 341 (1987) [hereinafterDuquette & Ramsey, Effective Representation].

42. Howard A. Davidson, Foreword to Ann M. Haralambie, The Child's Attorneyxi (1993).

43. Interview by Ms. England with Gail Mazey, Private Attorney, in Detroit,Mich. (June 1, 1992).

44. Id.45. Id.46. Id.

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Given the lack of clarity concerning the lawyer's role, the ambiva-lence regarding the existence of children's rights, and problems in theimplementation of GAL and delinquency representation programs, itis not surprising to learn that evaluations of attorneys representingchildren either as independent counsel or as GALs "have not beenfavorable."4 7 Researchers have identified both systemic and individ-ual attorney Oroblems that have contributed to the poor representa-tion of children. Systemic issues leading to problems in the quality ofrepresentation of children in child protection proceedings include: theappointment of different attorneys for the same child at differenthearings, delayed attorney appointments, unavailability of training orconsultation for inexperienced attorneys,48 low rate of compensationfor attorneys, and shortage of attorneys willing to represent children.49

Problems involving attorney performance have also been character-ized to be: "inadequate investigation, lack of contact with the childclient, lack of knowledge of the applicable law, lack of specialized-training, and passivity with regard to both adjudication anddisposition."5

A 1983 study of attorney GALs representing children in North Car-olina child protection proceedings concluded that the attorneys "werenot only ineffective but even tended to substantially delay a child'sreturn home."'" A survey of court records revealed that the attorneysspent an average of five hours per case, including court time. Rarelydid they follow their cases after the dispositional hearing.5" TheGALs typically agreed with the local department of social services'recommendations in 88% of the cases, leading the authors to concludethat they were -simply a presence, rather than an influence, in thecourtroom. 53 The authors noted that "[r]epresentation seemed to be a

47. Kelly & Ramsey, Monitoring, supra note 41, at 1219 (footnote omitted).48. Id.49. National Study, supra note 24, at 14-15; see also National Evaluation, supra

note 41, at 18 ("The major reasons for the poor performance of private attorneysappear to be lack of adequate compensation .... The private attorney GALs wereminimally compensated, receiving far less than needed to make a living and often notpaid for all hours they devoted to a case. Attorneys who depend on clients for theirlivelihood cannot devote sufficient time to their cases.")

50. Kelly & Ramsey, Monitoring, supra note 41, at 1219.51. Robert F. Kelly & Sarah H. Ramsey, Do Attorneys for Children in Protection

Proceedings Make a Difference?-A Study of the Impact of Representation under Con-ditions of High Judicial Intervention, 21 J. Far. L. 405, 407 (1982-83) [hereinafterKelly & Ramsey, Impact]; see also Kelly & Ramsey, Monitoring, supra -note 41, at1219.

52. Kelly & Ramsey, Impact, supra note 51, at 452.53. Id.; see also Donald Duquette & Sarah H. Ramsey, Using Lay Volunteers to

Represent Children in Child Protection Court Proceedings, 100 Child Abuse & Neglect293, 297 (1986) [hereinafter Duquette & Ramsey, Lay Volunteers ] (concluding that"a child's representative ought not agree with the social worker's recommendationswithout question. While maintaining a cooperative spirit, the representative shouldquestion the worker closely and extract the underlying basis for the caseworker's po-

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token affair, a mere procedural requirement with attorneys serving asa rubber stamp for the recommendation of the department of socialservices. This kind of system gives the illusion that abused and ne-glected children have their own advocate when in fact they do not. 5 4

The authors cited several reasons for the apparent failure of lawyersto effect change in the judicial system, including confusion by bothjudge and attorney as to the GAL's role, "lack of training, and anexpectation that cases would take a minimal amount of the [lawyer's]time."55 The authors hypothesized that judges may actually resentGALs for attempting to take on what they viewed As the traditionaljudicial role as the protector of the child's best interest 56 As a resultof this resentment, the researchers surmised that judges would ignorethe GAL's recommendations. 7 In addition, the GALs typically re-ceived minimal compensation, $50 per case, which provided little in-centive to spend adequate time on individual cases. 58 The authorsdetermined, however, that some GALs did have a positive impact ontheir child clients; experienced lawyers who worked longer hours,spoke to their clients, emphasized their role as negotiators, and "tooka critical stance in relation to the court and its system of providingrepresentation did a better job."59 Unfortunately, the authors re-ported that "[t]he attorneys who knew how to and did represent theirclients in a manner likely to make a difference constituted a distinctminority relative to those who did little or nothing in their role as thechild's representative."6

Many of the problems identified in these studies were also illus-trated in 1986 litigation brought against the Office of the Guardian adLitem in Cook County, Illinois. In G.S. v. Goodman,61 the petitioners

sitions and recommendations. The advocate's conclusions should be reachedindependently.").

54. Kelly & Ramsey, Impact, supra note 51, at 453-54.It seems fair to say that for the most part the attorneys were not expected tospend a lot of time on these cases, and in fact most did not. They acceptedthe prevailing, if implicit, definition of what constituted adequate represen-tation-a definition which seems to have emphasized their presence as amatter of procedural rather than substantive importance.

Id. at 453.55. ld. at 453.56. 1l at 451.57. Id.58. Id. at 452.59. Kelly & Ramsey, Monitoring, supra note 41, at 1239. Paradoxically, in their

first report of this study, the authors also concluded that younger GALs and thosewith little experience were "best able to avoid a child's removal from home." Kelly &Ramsey, Impact, supra note 51, at 453.

60. Kelly & Ramsey, Monitoring, supra note 41, at 1239.61. No. 86 CH 11721 (Cir. Ct. of Cook County, Ch. Div. Consent Degree entered

July 13, 1988). The Complaint alleged violations of the Juvenile Court Act, the Illi-nois Constitution, and, pursuant to 42 U.S.C. § 1983, the Due Process Clause of theFourteenth Amendment. The specific complaints included that the GAL office rou-tinely: (1) failed to notify clients and their parents of their appointment; (2) permit-

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alleged that the GALs appointed to represent abused and neglectedchildren routinely failed to fulfill their litem duties to their child cli-ents. Like Melinda, the former foster child discussed in the Introduc-tion, the children's primary complaint was that they were either rarelyor never given the opportunity to confer with their appointed GALs.62

Four months after the suit was fled, the Guardian ad Litem Officeceased to exist and the Public Guardian's Office took over the repre-sentation of children in child protection proceedings.63 Nearly twoyears later, the parties in the case reached a settlement that was ap-proved by the court in June of 1988.64

In response to the growing evidence that children were not receiv-ing adequate representation in child protection hearings, the federalgovernment authorized several evaluations to determine the effective-ness of GAL representation. The first study, the National Evaluationof the Impact of Guardians Ad Litem in Child Abuse or Neglect Judi-cial Proceedings was conducted by CSR, Inc., and was published inJune 1988.65 The following year, in its reauthorization of CAPTA,Congress directed the National Center on Child Abuse and Neglect tocommission another study of GAL programs.66 This study also was

ted proceedings to be conducted in their clients' absence by waiving their right to bepresent without authorization from the children; (3) allowed more than six months topass before contacting their client (sometimes more than a year passed); (4) allowedindividual GALs to carry caseloads in excess of 400; (5) delegated decision making asto whether a child should be brought to court to the caseworkers, opposing attorneys,or foster parents; (6) failed to advise their clients about the status of the case, discusstheir legal options, initiate or conduct discovery, file motions of any sort, subpoenawitnesses for hearings, prepare testimony, or cross-examine witnesses; (7) assisted thestate in presenting the case against a parent, evenwhen it was contrary to the child'sobjectives, and deferred to the state in making legal decisions affecting their clients;(8) failed to object to policies and practices that injured their clients, including place-ment in overcrowded, inhumane shelters; (9) allowed their professional judgment re-specting the representation of their clients to be directed and regulated by anonattorney; (10) failed to determine the "best interests" of their clients; (11) failed todevelop a fiduciary relationship with their client; (12) failed to investigate the factualcircumstances concerning their clients' cases; (13) failed to protect their client fromharm; (14) failed to advise the court as to their clients' circumstances; (15) failed topursue legal rights to benefits and services for their clients; and (16) failed to fulfilltheir duties as GAL for plaintiffs. Class Action Complaint at 14-17, G.S. v. Goodman(No. 86 CH 11721).

62. For example, G.S., the lead plaintiff, was in a series of placements, includingone foster home, four group homes, and one temporary shelter, starting in March1985. Eighteen months later she still had not met her GAL. M.S. was removed fromher mother in October 1984. She was placed in fifteen different foster homes andother placements. Two years later she still had not been notified that a GAL hadbeen appointed to represent her. She had never come to court and had never met orspoken with her attorney.

63. Stipulation at 2-3, Goodman (No. 86 CH 11721).64. Notice of Order Approving Settlement of Lawsuit at 2, Goodman (No. 86 CH

11721).65. National Evaluation, supra note 41.66. Child Abuse Prevention and Treatment Act, Pub. L. No. 100-294, 102 Stat. 102

(1988) (codified at 42 U.S.C. §§ 5101-5106 (1988 & Supp. V 1993)).

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conducted by CSR, Inc., who subcontracted with the American BarAssociation Center for Children and the Law.67 The study was con-ducted and published in two phases. Phase I of the study, the Na-tional Study of Guardian Ad Litem Representation, furnisheddescriptive information on GAL programs and was published in Octo-ber 1990.68 Phase II of the study, reported in the Final Report on theValidation and Effectiveness Study of Legal Representation ThroughGuardian Ad Litem, evaluated the effectiveness of GAL legislationand validated Phase I findings.6 9 Specifically, the Final Report's pur-pose was to: (1) identify how legal representation to abused and ne-glected children is provided in each state;7" (2) evaluate theeffectiveness of legal representation of children through the use ofGALs and court appointed special advocates;7 and (3) provide rec-ommendations on how to improve the legal representation of childrenin child protection proceedings.72 At least three program models ofGAL representation were identified in each of the reports: (1) theprivate attorney model, (2) the staff attorney model, and (3) the CourtAppointed Special Advocate ("CASA") model.73

Originally, the Final Report was intended to validate the findings ofthe National Evaluation; however, the authors reported that changesin the study design and the program due to the time lapse limited thecomparability between the two. The National Evaluation relied on anobjective analysis of judicial and social services records and outcomemeasures to evaluate and compare the three different forms of GALrepresentation.74 The Final Report adopted a procedural definition ofeffectiveness, and relied more heavily on self-reports of the GALs,judges and social workers on how the GALs performed in various cat-egories of activities.75

67. See National Study, supra note 24.68. Id69. See Final Report, supra note 19.70. l at 1-1.71. Id at 5-13 to 5-15.72. Id. at 6-1.73. Id. In the private attorney model, the court appoints an attorney in private

practice to represent a child and provides the attorney compensation. Id. at 2-11. Inthe staff attorney model, the court or city employs a staff of attorneys either directlyor through contracts with law firms, legal aid bureaus, or public defender's office. Id-In the CASA model, lay volunteers are trained to provide representation to children.Additional models include supervised law students and combinations of lay volun-teers with a paid attorney. Id.; see also Duquette & Ramsey, Effective Representation,supra note 41, at 348-50 (describing the CASA model).

74. National Evaluation, supra note 41, at 2. Three data sources were used: (1)information gathered in interviews with juvenile court judges, state attorneys, andGALs; (2) "information extracted from local child welfare agency records and familycourt records, which provided quantitative measures of GAL performance and effec-tiveness"; and (3) "two 'network' interviews, at each site, which provided case studiesof GAL activity." Id.

75. Final Report, supra note 19, at xiii. Data were collected from interviews withGALs, caseworkers, and judges, and from case record extractions. Id. Five roles were

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Echoing the results of earlier empirical studies, both the Final Re-port and the National Evaluation identified numerous deficiencies inthe representation of children in child protection proceedings. TheFinal Report also determined that a substantial number of GALs hadno contact or limited contact with their child clients. Private attorneyswere the primary transgressors, with almost thirty percent of the pri-vate attorneys reporting that they had no contact with their clients.76

The data also indicated that most private attorneys did not sufficientlyprepare their cases for the child protection proceedings.77 The judges'responses regarding their assessments of GAL performance tended tosupport the guardian's self-reports, as the judges agreed that the pri-vate attorneys were least likely to be effective in performing their in-vestigatory duties.78

Focusing on outcomes, the National Evaluation concluded that theCASA model of GAL representation produced the greatest numberof outcomes in their child client's best interest:

The CASA models clearly excelled as a method of GAL representa-tion. CASAs were highly rated by professional respondents andoutshone the other models on the quantitative best interest out-come measure. The network interviews also revealed outstandingperformances by the volunteers. The CASA's success appeared tobe due to their intimate knowledge of the case. They conductedextensive investigations, monitored the case closely for its durationand developed good relationships with their child clients. CASAswere most effective in ensuring the family was receiving servicesthat would lead to family reunification7 9

used to evaluate GAL effectiveness: "(1) factfinder and investigator, (2) legal repre-sentative, (3) case monitor, (4) mediator and negotiator, and (5) resource broker." Id.at xii; see also Donald N. Duquette, Advocating for the Child in Protection Proceed-ings: A Handbook for Lawyers and Court Appointed Special Advocates 36-37(1990).

76. Final Report, supra note 19, at 5-5. Over 17% of the staff attorneys and nearlynine percent of the CASA volunteers also had no contact with their child clients. I&

77. Id. at 5-13. Private attorneys reported that they extensively prepared in 42.3%of the cases, as compared to 71.2% of the CASA volunteers and over 60% of the staffattorneys. Id

78. Id. at 5-15. Only 30% of the private attorneys were deemed effective in per-forming their investigation duties, while 53% of staff attorneys were effective and72% of CASA volunteers were effective. Id.

79. National Evaluation, supra note 41, at 18.There appears [sic] to be two reasons for the effectiveness of CASA models:personal motivation of the volunteers and low caseloads. CASAs are inter-ested and committed to their work. They spend considerable time on theircases without any monetary compensation and are willing to remain in-volved over extended periods of time. The reasons they gave for their com-mitinent in the network interviews-interest in children, the desire toimprove the 'system' and make an impact on a child's life-suggest strongpersonal motivations.

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The National Evaluation rated the private attorney model as the"weakest method" of providing GAL representation. 0

Private attorneys generally did not develop independent assess-ments of the case or conduct adequate investigations, frequently didnot meet with the child before or after court appearances, did notmonitor cases, were not effective in helping the child receive serv-ices and did not assist in placement decisions. Thus, this model re-ceives our lowest assessment.81

In spite of the similarities in these two studies' conclusions regard-ing private attorney performance in both performance and outcomecategories, the authors of the Final Report determined that their find-ings did not support a conclusion that one model of GAL representa-tion was more preferable than another.' Arguably, the disparateoutcomes in these two studies could be explained by the use of differ-ent study designs, time lapse, and different subjects. These separatestudies, however, arrived at different conclusions even though they re-ported similar findings within correspondingly similar categories ofeffectiveness.

The essentially negative thrust of the various evaluations of the ef-fectiveness of lawyers as GALs or counsel for children in child protec-tion proceedings-abuse, neglect, dependency, and termination ofparental rights-has been echoed in delinquency and other juvenile orfamily court matters as well. Several studies have revealed thatjuveniles were represented by counsel in an even lower percentage ofcases than were children in abuse and neglect cases,8 3 in spite of thefact that the right to counsel in delinquency cases has been a constitu-tional mandate since the 1967 decision of In re Gault.84 ProfessorBarry Feld has pointed out in a series of important articles that manyjuveniles go unrepresented in delinquency matters where the risk ofloss of liberty is often quite high.8 5 Feld found that in three of the six

80. Id. at 15.81. Id. at 15-18.

The major reasons for the poor performance of private attorneys appear tobe lack of adequate compensation and lack of training. The private attorneyGALs were minimally compensated, receiving far less than needed to makea living and often not paid for all hours they devoted to a case. Attorneyswho depend on clients for their livelihood cannot devote sufficient time totheir cases. Private attorneys were also the only GALs that were allowed torepresent child clients with no training in their proper role. The only gui-dance they received were court instructions or statutes which only describedthe GAL role in general terms. Without training, many attorneys were notadequately informed about their role.

Id. at 18.82. Final Report, supra note 19, at 6-20.83. See supra note 27 (estimating the number of cases in which children were rep-

resented in child prbtection proceedings).84. 387 U.S. 1 (1967).85. Barry C. Feld, Criminalizing the Juvenile Court: A Research Agenda for the

1990s, in Juvenile Justice and Public Policy: Toward a National Agenda 59 (Ira M.

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states where statistical data was available, less than half of the youthstried for delinquency or status offenses were represented by counsel.86

Other studies that were completed shortly after the decision in In re

Gault showed similarly low instances of advice of the right to counselor the actual appointment of counsel,87 and high incidence of lawyersdoing practically nothing when they were appointed.88 Similar studieson appointment rates were consistent with Feld's findings: Clarke andKoch found less than half of the youths represented in two sites inNorth Carolina,89 Bortner discovered that only 41.8% of the juvenileshad representation in a large, midwestern county,90 Walter and Os-trander reported that 32% of the youngsters in a large north-centralcity were represented, 91 and Aday discovered low representation ratesof 26.2% and 38.7% in two localities in a southeastern state.92 Wherecounsel is provided, that attorney may have an incredibly burdensomecaseload or be inexperienced and poorly trained.

Representation by counsel may even be a setting in which the dispa-rate handling of children of color may be manifest. A study in Michi-gan revealed that African-American young people were visited less"frequently in detention than white youth, and white juveniles reporteda satisfaction factor of seven on a scale of ten compared with a 5.6rating by African-American youth.93 In one medium-sized city in thestate, white youth reported an attorney satisfaction quotient of nineout of ten as contrasted with 3.9 for African-American youth.94

Schwartz ed., 1992); Barry C. Feld, The Right to Counsel in Juvenile Court: An Empir-ical Study of When Lawyers Appear and the Difference They Make, 79 J. Crim. L. &Criminology 1185 (1989); Barry C. Feld, In re Gault Revisited: A Cross-State Compar-ison of the Right to Counsel in Juvenile Court, 34 Crime & Delinq. 393 (1988) [herein-after Feld, In re Gault Revisited]; Barry C. Feld, Criminalizing Juvenile Justice: Rulesof Procedure for the Juvenile Court, 69 Minn. L. Rev. 141 (1984).

86. Feld, In re Gault Revisited, supra note 85, at 416. The states surveyed wereCalifornia, Minnesota, Nebraska, New York, North Dakota, and Pennsylvania, andthe three states with the low representation rates were Minnesota (47.7%), Nebraska(52.7%), and North Dakota (37.5%). Id. at 401.

87. Norman Lefstein et al., In Search of Juvenile Justice: Gault and Its Implemen-tation, 3 Law & Soc'y Rev. 491, 533 (1969).

88. Emily Zenoff Ferster & Thomas F. Courtless, Pre-dispositional Data, Role ofCounsel and Decisions in a Juvenile Court, 7 Law & Soc'y Rev. 195, 207 (1972).

89. Stevens H. Clarke & Gary G. Koch, Juvenile Court: Therapy or Crime Con-tro; and Do lawyers Make a Difference?, 14 Law & Soc'y Rev. 263, 297 (1980). Therepresentations rates were 22.3% and 45.8% at the two locations in the state. Id

90. M.A. Bortner, Inside a Juvenile Court: The Tarnished Ideal of IndividualizedJustice 139 (1982).

91. James D. Walter & Susan A. Ostrander, An Observational Study of a JuvenileCourt, 33 Juv. & Fain. Ct. J. 53, 59 (1982).

92. David P. Aday, Jr., Court Structure, Defense Attorney Use, and Juvenile CourtDecisions, 27 Soc. Q. 107, 112-14 (1986).

93. School of Criminal Justice, Michigan State University, Disproportionate Rep-resentation in Juvenile Justice in Michigan: Examining the Influence of Race andGender 121 (1993).

94. Id.

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The recently concluded study of the right to counsel by the JuvenileJustice Center of the American Bar Association, the Juvenile Lawcenter, and the Youth Law Center for the Office of Juvenile Justiceand Delinquency Prevention of the United States Department of Jus-tice opined "that large numbers of youth across the country appear injuvenile court without lawyers," that "high caseloads [was] the singlemost important barrier to effective representation," and that therewere "substantial deficiencies in access to counsel and the quality ofrepresentation in juvenile court."95 That study concluded at one pointthat "the assessment raised serious concerns that the interests of manyyoung people in juvenile court are significantly compromised, and thatmany children are literally left defenseless."96

A New York Bar Association study of lawyers appointed to repre-sent children as law guardians in delinquency and other cases alsoconcluded that many of them were ineffective.97 In the New Yorkstudy the researchers established several basic criteria of effectiveness:the law guardian must "meet the client, be minimally prepared, havesome knowledge of the law and of possible dispositions, and be activeon behalf of his or her client."'98 Using these criteria, the study deter-mined that 45% of the overall observed representation was seriouslyinadequate or marginally inadequate, and it was effective in only 4%of the observed representation. 99 Nearly 50% of the transcripts re-vealed appealable errors made by the law guardians, or by the judgesthat went unchallenged.' 00 Although law guardians were mandatedby statute to represent their child client's rights or wishes, a mail-backsurvey revealed that they typically considered the child's best interestinstead.1 1 Also, the law guardians often described themselves as hav-ing little experience or training, and that they were unclear about theirrole. 0 2

III. TYPES OF LEGAL PROCEEDINGS IN WHICH CHILDREN MAY BEENTITLED TO LEGAL REPRESENTATION ANDDESIGNATION OF LEGAL REPRESENTATIVE

Lawyers may be called upon to represent children in a great varietyof legal proceedings, including as counsel in delinquency or status of-fense proceedings, such as children in need of services or supervision("CHINS" or "CINS"), children in need of assistance ("CINA"),juveniles in need of supervision or services ("JINS"), and the like, or

95. A Call for Justice, supra note 2, at 7-8.96. Id. at 6-7.97. Kelly & Ramsey, Monitoring, supra note 41, at 1245.98. Law Guardians, supra note 41, at 8.99. IaL

100. Id. at 9.101. Id. at 41.102. Kelly & Ramsey, Monitoring, supra note 41, at 1246.

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as counsel or GALs in child protection or termination of parentalrights proceedings. Lawyers may also represent children in adoptions,or in custody or visitation cases, whether incidental to a divorce orannulment matter, or in pendente lite temporary determinations.Likewise, counsel may be assigned in child support or paternity mat-ters. An attorney may also be appointed in a mental health commit-ment proceeding pursuant to statute, or in mental retardationcertification matters. Similarly, a state statute may provide for the ap-pointment of counsel or of a GAL in a judicial bypass proceeding inconnection with an abortion. Although other types of civil proceed-ings are beyond the scope of this Article, a GAL may be appointed orretained in many different forms of civil litigation, such as a personalinjury or wrongful death case, social security or workers compensationmatters, and a whole range of probate proceedings.

IV. ROLE CONFUSION

The inconsistencies in the appointment of GALs for abused and ne-glected children are further exacerbated by the lack of clarity regard-ing the role and responsibilities of the GAL. Neither CAPTA, itsimplementing regulations, nor many state statutes have adequatelydefined the roles or responsibilities of GALs.10 3 As one report hasconcluded:

These statutes generally charge the GAL with protecting, promot-ing, advocating, and/or representing the interests of the child. Moststatutes specify representation of the 'best' interests of the child,regardless of the GAL's status as an attorney. Over one-half of theStates stop at this general role for the GAL and offer no furtherguidance. 0 4

The confusion over the GAL's role also is compounded by an ongoingdebate within the legal profession regarding whether it is appropriatefor attorneys to adopt the role of GAL when representing children.'

103. 45 C.F.R. § 1340.14(g) (1994).In every case involving an abused or neglected child which results in a judi-cial proceeding, the State must insure the appointment of a guardian ad li-tern or other individual whom the State recognizes as fulfilling the samefunctions as a guardian ad litem, to represent and protect the rights and bestinterests of the child.

ld.; see also Final Report, supra note 19, at 2-1 ("In general, the roles and responsibili-ties of the GAL have not been clearly defined.").

104. Final Report, supra note 19, at 2-1. The Final Report also provides a statutorysurvey of the treatment of roles and responsibilities of GALs. Id.

105. Emily Buss, "You're My What?": The Problem of Children's Misperceptionsof Their Lawyers' Roles, 64 Fordham L. Rev. 1699 (1996); Jinanne S. J. Elder, TheRole of Counsel for Children: A Proposal for Addressing a Troubling Question, 35Boston B. J. 6, 8 (1991); Katherine Hunt Federle, The Ethics of Empowerment: Re-thinking the Role of Lawyers in Interviewing and Counseling the Child Client, 64 Ford-ham L. Rdv. 1655 (1996) [hereinafter Empowerment]; Katherine Hunt Federle, RightsFlow Downhill, 2 Int'l J. Children's Rights 343 (1994); Martin Guggenheim, A Para-

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Regardless of the reasons for this lack of clarity over the GAL's role,according to the CSR study "[c]oherence and consistency of GAL rep-resentation clearly is the exception in most States."' 6 Several com-mentators have suggested that this disparity and confusion regardingthe role can lead to attorneys failing to fulfill their professional re-sponsibilities, providing erroneous representation, and ultimatelyharming a child client.1 7 In an attempt to provide guidance for attor-neys and CASA volunteers, various legal organizations, child advo-cates, and courts have attempted to fill this gap by developing,publishing, or mandating practice standards and guidelines.

V. ETHICAL CODE AND RULES CONSIDERATIONS

A. American Bar Association Model Code of ProfessionalResponsibility

The American Bar Association's Model Code of Professional Re-sponsibility ("Code") was enacted in 1969 and was the model for thecodes promulgated by most states until the adoption of the ModelRules of Professional Conduct ("Rules") in 1983.108 It speaks onlysuperficially to the representation of children and youth, and that justin Canon 7; which reads "A Lawyer Should Represent a Client Zeal-ously Within the Bounds of the Law."'1 9 Ethical Consideration("EC") 7-1 fleshes out the general mandate of Canon 7 by explicitlyurging the zealous representation of the client within the bounds oflegal and ethical constraints," 0 and EC 7-7 points out that decisionsaffecting the merits of the cause or substantially prejudicing the rightsof the client are exclusively those of the client."' EC 7-11 offers theonly possible guidance to the responsibilities of the lawyer represent-ing a child by noting that such duties "may vary according to the intel-ligence, experience, mental condition or age of a client.""' EC 7-12

digm for Determining the Role of Counsel for Children, 64 Fordham L. Rev. 1399(1996) [hereinafter Paradigm]; Jonathan 0. Hafen, Children's Rights and Legal Repre-sentation-The Proper Roles of Children, Parents, and Attorneys, 7 Notre Dame J.L.Ethics & Pub. Pol'y 423 (1993); Kelly & Ramsey, Monitoring, supra note 41; Jean KohPeters, The Roles and Content of Best Interests in Client-Directed Lawyering for Chil-dren in Child Protective Proceedings, 64 Fordham L. Rev. 1505 (1996); EdwardSokolnicki, The Attorney as Guardian Ad Litem For A Child in Connecticut, 5 Conn.Prob. L.J. 237 (1991); Roy T. Stuckey, Guardians Ad Litem As Surrogate Parents:Implications for Role Definition and Confidentiality, 64 Fordham L. Rev. 1785 (1996);Shannan L. Wilber, Independent Counsel for Children, 27 Fam. L.Q. 349 (1993).

106. National Study, supra note 24, at 9.107. Kelly & Ramsey, Impact, supra note 51, at 411-16; Sokolnicki, supra note 30,

at 240.108. Professional Responsibility Standards, Rules and Statutes 235 (John S.

Dzienkowski ed., 1995-96 ed.).109. I d. at 299.110. Id. at 299-301.111. Id. at 304.112. Id. at 306.

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carries the caveat of 7-11 a step further by advising that a client who isincapable of making a considered judgment casts additional andunique responsibilities on an attorney, especially if there is no guard-ian or other representative to assist in making decisions."'

B. American Bar Association Model Rules of Professional Conduct

The ABA's Model Rules of Professional Conduct were promul-gated in 1983 to replace the earlier Code, and they have become themodel for about two-thirds of the states, albeit with more substantialmodifications at the state level than was the case with the Code."'The most pertinent rule to guide lawyer representation of children isRule 1:14:

Rule 1.14 Client Under a Disability(a) When a client's ability to make adequately considered deci-

sions in connection with the representation is impaired, whether be-cause of minority, mental disability or for some other reason, thelawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

(b) A lawyer may seek the appointment of a guardian or takeother protective action with respect to a client, only when the law-yer reasonably believes that the client cannot adequately act in theclient's own interestii 5

The Comment to the rule expressly refers to the problem of represen-tation when the client is a minor and thus "maintaining the ordinaryclient-lawyer relationship may not be possible in all respects.""' 6 Im-portantly, the Comment points out:

[A] client lacking legal competence often has the ability to under-stand, deliberate upon, and reach conclusions about matters affect-ing the client's own well-being. Furthermore, to an increasingextent the law recognizes intermediate degrees of competence. Forexample, children as young as five or six years of age, and certainly

113. Id. The ethical consideration states:If a client under disability has no legal representative, his lawyer may becompelled in court proceedings to make decisions on behalf of the client. Ifthe client is capable of understanding the matter in question or of contribut-ing to the advancement of his interests, regardless of whether he is legallydisqualified from performing certain acts, the lawyer should obtain from himall possible aid.

AL It goes on to admonish the lawyer, if compelled to make decisions for the client,to "act with care to safeguard and advance the interests of [the] client" while advisingthat the lawyer cannot perform acts or make decisions "which the law requires hisclient to perform or make," either by himself or through a personal representative.Id.

114. Id. at 3.115. Id. at 51.116. Id. cmt.

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those of ten or twelve, are regarded as having opinions that are enti-tled to weight in legal proceedings concerning their custody." 7

Other guidance offered advises that the lawyer has an "obligation totreat the client with attention and respect," that she "often must act asde facto guardian" if one does not exist, and should see to the "ap-pointment [of a legal representative] where it would serve the client'sbest interests.""' 8 Little further advice or direction is given about therole of the lawyer in various proceedings or concerning the ascertain-ment of when the minor client requires other representation or substi-tuted decision making.

C. The Duty to Provide Competent Representation.

Both the Code and the Rules require that an attorney represent hisor her client "competently," the former in Canon 6, reinforced by Dis-ciplinary Rule ("DR") 6-101," 9 and the latter in the more expansiveRule 1.1, which asserts that "[c]ompetent representation requires thelegal knowledge, skill, thoroughness and preparation reasonably nec-essary for the representation."' 2 ° This would clearly be the most com-mon ethical deficiency in lawyers who provide superficial or negligentrepresentation to children and youth in various legal proceedings, andyet it is likely that few disciplinary actions are brought in any jurisdic-tion alleging ethical incompetency.

VI. VARIous NATIONAL AND STATE STANDARDS FOR CHILD

REPRESENTATION

A number of organizations and groups have attempted to developstandards governing the role and functioning of lawyers representingchildren, with the earliest being the Institute for Judicial Administra-tion-American Bar Association ("IJA-ABA") Juvenile Justice Stan-dards and other similar juvenile justice oriented guidelines developedin, the late 1970s and early 1980s.

A. IJA-ABA Juvenile Justice Standards (1979)

Standard 3.1 of the Standards Relating to Counsel for Private Par-ties provides:

(a) Client's interests paramount.However engaged, the lawyer's principal duty is the representa-

tion of the client's legitimate interests. Consideration of personaland professional advantage or convenience should not influencecounsel's advice or performance.

117. Id. at 51-52.118. Id. at 52.119. Id. at 297, 299.120. Id. at 10.

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(b) Determination of client's interests.(i) Generally.

In general, determination of the client's interests in the pro-ceedings, and hence the plea to be entered, is ultimately theresponsibility of the client after full consultation with theattorney.

(ii) Counsel for the juvenile.[a] Counsel for the respondent in a delinquency or in need of

supervision proceeding should ordinarily be bound by theclient's definition of his or her interests with respect to ad-mission or denial of the facts or conditions alleged. It isappropriate and desirable for counsel to advise the clientconcerning the probable success and consequences ofadopting any posture with respect to those proceedings.

[b] Where counsel is appointed to represent a juvenile subjectto child protective proceedings, and the juvenile is capableof considered judgment on his or her own behalf, determi-nation of the client's interest in the proceeding should ulti-mately remain the client's responsibility, after fullconsultation with counsel.

[c] In delinquency and in need of supervision proceedings,where it is locally permissible to so adjudicate very youngpersons, and in child protective proceedings, the respondentmay be incapable of considered judgment in his or her ownbehalf.[1] Where a guardian ad litem has been appointed, primary

responsibility for determination of the posture of thecase rests with the guardian and the juvenile.

[2] Where a guardian ad litem has not been appointed, theattorney should ask that one be appointed.

[3] Where a guardian ad litem has not been appointed and,for some reason, it appears that independent advice tothe juvenile will not otherwise be available, counselshould inquire thoroughly into all circumstances that acareful and competent person in the juvenile's positionshould consider in determining the juvenile's interestswith respect to the proceeding. After consultation withthe juvenile, the parents (where their interests do notappear to conflict with the juvenile's), and any otherfamily members or interested persons, the attorney mayremain neutral concerning the proceeding, limiting par-ticipation to presentation and examination of materialevidence or, if necessary, the attorney may adopt theposition requiring the least intrusive intervention justi-fied by the juvenile's circumstances.121

121. HJA-ABA Joint Commission on Juvenile Justice Standards, Juvenile JusticeStandards: Standards Relating to Counsel for Private Parties 77-80 (1979).

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B. National Advisory Committee for Juvenile Justice andDelinquency Prevention, Standards for the Administration

of Juvenile Justice (1980)

The Standards for the Administration of Juvenile Justice issued bythe National Advisory Committee provide, in pertinent part:

Standard 3.134. Role of Counsel The principal duty of an attorneyrepresenting the state in a family court matter is to seek justice.

The principal duty of an attorney representing a private individ-ual in a matter within the jurisdiction of the family court should beto represent zealously that individual's legitimate interests. Deter-mination of the client's interest under the law should ordinarily re-main the responsibility of the client.

If an attorney finds, after interviews and other investigation, thata client cannot understand the nature and consequences of the pro-ceedings and is therefore unable rationally to determine his/her owninterests in the proceedings, the attorney should bring that circum-stance to the court's attention, ask that a guardian ad litem be ap-pointed on the client's behalf, and advise the court of possibleconflicts of interest between the client and any person under consid-eration for appointment as guardian ad litem.

The standards distinguish the role of the GAL from that of counsel.

Standard 3.169. Appointment and Role of Guardian Ad Litem. Thefamily court should appoint a guardian ad litem to protect the rightsand interests of a juvenile subject to its jurisdiction:

a. Who is incapable of adequately comprehending the nature andconsequences of and participating in the proceeding because of im-maturity or a mental disability;

b. Whose parent, guardian, or primary caretaker does not appearor has an adverse interest in the proceeding; or

c. Whose interests otherwise require it.The guardian ad litem should inquire thoroughly into all the cir-

cumstances that a careful and competent individual in the juvenile'sposition would in determining his/her interests in the proceeding.

The appointment should be made at the earliest feasible time af-ter the need therefor has been shown. The court should informguardians ad litem, upon appointment, of their responsibilities andpowers.

Persons with interests adverse to those of the juvenile, or a publicor private institution or agency having custody of the juvenileshould not be appointed guardian ad litem.

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C. National Advisory Committee on Criminal Justice Standards andGoals, Report of the Task Force on Juvenile Justice and

Delinquency (1976)'"

The Report of the Task Force on Juvenile Justice and Delinquency,in Standard 16.4 states:

A lawyer appointed to serve as guardian ad litem for a person sub-ject to family court proceedings should inquire thoroughly into allcircumstances that a careful and competent person in the ward's po-sition would consider in determining his or her interests in the pro-ceeding. When the client is the respondent, the guardian ordinarilyshould require proof of the facts necessary to sustain jurisdiction,and, if jurisdiction is sustained, take the position requiring the leastintrusive intervention justified by the child's circumstances. In rep-resenting a child in Endangered Child, custody, or adoption pro-ceedings, the guardian may limit his or her activity to presentationand examination of material evidence or may adopt the position re-quiring the least intrusive intervention justified by the child'scircumstances.

123

D. The National Association of Counsel for Children,Guidelines for Guardians Ad Litem in Abuse

and Neglect Cases (1987)

These Guidelines do not seek to define the role of the GAL in such

proceedings; rather, they describe the tasks which the attorney is toperform during the course of such representation. 24 They define avery proactive and comprehensive role for the lawyer 2 5

E. American Academy of Matrimonial Lawyers, RepresentingChildren: Standards for Attorneys and Guardians Ad

Litem in Custody or VisitationProceedings (1995) 126

These Standards initially state in Standard 1.1 that counsel or GALsshould not routinely be assigned in custody or visitation proceedings,but such appointment should be reserved for cases where "both par-ties request the appointment or the court finds after a hearing thatappointment is necessary in light of the particular circumstances of thecase."' 27 Standards 1.2 and 1.3 further propose that "a person should

122. National Advisory Committee on Criminal Justice Standards and Goals,Juvenile Justice and Delinquency Prevention: Report of the Task Force on JuvenileJustice and Delinquency Prevention (1976).

123. Id. at 557.124. See Haralambie, supra note 42, at 283; National Association of Counsel for

Children, Deskbook and Directory 199 (1995).125. See Haralambie, supra note 42, at 283.126. American Academy of Matrimonial Lawyers, supra note 28.127. Id at 1, 9-12 (Standard 1.1 & cmt.).

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be trained in representation of children" before being eligible for anappointment and that the court "should specify in writing the tasksexpected of the representative" whenever counsel or a GAL is as-signed. 2 The Standards contemplate the appointment of a GAL whois not an attorney, but admonish that a lawyer who accepts a guardianappointment "should not combine the roles of counsel and guardian"except in compliance with other Standards."' The major body of theStandards focuses on the role of the attorney, which is based in largepart on whether the child client is "impaired" or "unimpaired."' 30

The representation of the "unimpaired" child is to be identical to therepresentation of an unimpaired adult client,'131 and such a child has"the right to set the goals of representation.' 1 32 With the "impaired"child client, the lawyer is to maintain as normal a relationship as possi-ble and should "not advocate a position with regard to the outcome ofthe proceeding or issues contested during the litigation."' 33

F. Proposed American Bar Association Standards of Practice forLawyers Who Represent Children in Abuse and Neglect

Cases (1995).134

The proposed ABA Standards in abuse and neglect cases urge theappointment of a "child's attorney" who will provide legal services inmuch the same way as would be provided an adult client.' 35 This"child's attorney must advocate the child's articulated position.' 1 36

This role is contrary to an appointed "guardian ad litem" who may beobligated "to protect the child's interests without being bound by thechild's expressed preferences."' 37

G. Various State Representation Standards for LawyersRepresenting Children

Several states have promulgated standards governing the appropri-ate function of GALs. New York was an early pioneer in this effort,with its Law Guardian Representation Standards, promulgated by theNew York State Bar Association in 1988.138 The Guardians Ad Litem

128. Id. at 1, 13-15 (Standard 1.2 & 1.3 & cmts.).129. Id. at 4, 37 (Standard 3.1).130. Id. at 2, 16-23 (Standards 2.1-2.2).131. Id. at 2, 23 (Standard 2.3).132. Id. at 2, 24 (Standard 2.4).133. Id. at 3, 27 (Standard 2.7).134. 29 Fam. L.Q. 375 (1995).135. Proposed Standards of Practice for Lawyers Who Represent Children in Abuse

and Neglect Cases, 29 Far. L.Q. 375, § A-1 (1995).136. Id. at 376, § A-1 cmt.137. Id. § A-2,138. New York State Bar Association, Committee on Juvenile Justice and Child

Welfare, Law Guardian Representation Standards (1988). The Standards applicableto delinquency matters may be found at pages 1-64, those relating to persons in needof supervision ("PINS") proceedings are at pages 65-123, and those governing child

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Committees of the Justices of the Superior Court and Clerks of theSuperior Court in New Hampshire also issued guidelines, and anumber of states define the GAL's role statutorily. 139 Standards ofPractice for Guardians ad Litem were subsequently developed by ajoint GAL Standards Committee of the Colorado Bar AssociationFamily Law Section and Juvenile Law Forum in 1991,140 and Hawaii'sFamily Court has issued Standards on Duties of a Guardian Ad Litem,which are incorporated in the court's Order Substituting Guardian AdLitem. The Virginia Supreme Court has adopted Rule of Court 8.6 forthe state's juvenile courts, which provides that:

When appointed for a child, the guardian ad litem shall vigorouslyrepresent the child fully protecting the child's interest and welfare.The guardian ad litem shall advise the court of the wishes of thechild in any case where the wishes of the child conflict with theopinion of the guardian ad litem as to what is in the child's interestand welfare.' 4'

The same rule provides that in cases such as delinquency and statusoffenses in which the lawyer is "counsel," "the role of counsel for achild is the representation of the child's legitimate interests."' 42

VI. WHAT SHOULD BE THE ROLE OF THE LAWYER FOR THE

CHILD CLIENT?

There appear to be some clear trends developing in the delineationof roles for lawyers representing children. Most recent sets of Stan-dards seem to advance a model of representation that is substantiallyidentical to that for an unimpaired adult when the child is able to givedirection to the attorney in performing tasks in the case. This modelhas the distinct advantage of consistency. Given the likely continua-tion of forces that militate against ideal representation-poor com-pensation, large caseloads, occasional recalcitrant judges, little in theway of investigative and other resources-a role that is familiar to thelawyer is more apt to be performed competently. Even with the con-scientious lawyer, considerable confusion can arise if too many differ-

protective proceedings, termination of parental rights, and foster care placement andreview may be found at pages 124-237. Id.

139. For an excellent discussion of these various Standards and statutes, as well assome further helpful information, see Haralambie, supra note 42, at 239-88.

140. Id.141. Va. R. Ct. 8:6 (1995). The Official Comment to the Rule indicates that the

language is designed "to track that of the ABA Standards and Virginia case law." Id-A GAL in Virginia must be an attorney. Va. Code Ann. § 16.1-266.A (Michie 1988).Virginia Unauthorized Practice of Law (UPL) concludes that a nonlawyer expert onchild custody and child welfare may not be appointed as a GAL. See Forty-SeventhAnn. Rep. of the Virginia State Bar (Adv. Op. No. 62, June 30, 1985).

142. Va. R. Ct. 8:6 (1995). The Official Comment to the Rule again states that thelanguage is intended "to track that of the ABA Standards and Virginia case law." Va.R. Ct. 8:6. ABA Standard 3.1 addresses the determination of the child's "legitimateinterests."

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ent models of representation are advocated. Since the 1967 In reGault decision, 43 the zealous advocate,'" client empowerment, or cli-ent-centered' 45 role has widely been accepted as the standard and ex-emplary approach.' 46 Thus, attorneys accustomed to that role indelinquency matters can more readily fit into the same role in otherchild representation scenarios. In addition, it is more common forother participants in the legal process to have counsel clearly dedi-cated to an advocacy role, and the judge or jury will usually hear fromother participants whose positions are being articulated by counsel toassist in the definition of the child's "best interests."

To place the burden of advocating the child's "best interests" on thelawyer for the child rather than merely advocating the child's wishes isto deny the child an effective voice in the proceedings. Of coursemost abused or neglected children wish to go back to the abusivehome, but who will articulate the child's desires or wishes, howeverirrational it may seem to adults, if the lawyer for the minor will not doso? In child protection proceedings, lawyers should more frequentlyurge the appointment of an independent GAL, or a court-appointedspecial advocate, to articulate the child's "best interests" position, andseek to be only an advocate for what the child wants. Obviously, it isnecessary to discriminate among the child clients who are verbal andunimpaired, those who are verbal but impaired, and those who arepre-verbal, such as infants or older children with other disabilities.The attorney,- however, should stick primarily to an advocacy modeland at least initiate representation premised on a presumption thatthe child is competent and needs autonomy and empowerment. 147

The lawyer appointed should serve as the child's legal representative,or attorney/champion, 148 and leave the role of the GAL or the advo-cate for the child's "best interests" to another person who is speciallytrained in child development or child psychology, or who is serving asa CASA.

149

Lawyers, and lay or expert GALs or CASAs, need much moretraining; it is a sad commentary on the commitment of the traditional

143. 387 U.S. 1 (1967). See supra notes 13-16 (discussing In re Gault).144. See, e.g., Model Code of Professional Responsibility Canon 7.145. See, e.g., Federle, Empowerment, supra note 105, at 1658-63.146. 1 Randy Hertz et al., Trial Manual for Defense Attorneys in Juvenile Court

13-14 (1991); Guggenheim, Paradigm, supra note 105, at 1422-23.147. Peters, supra note 105, at 1519-21; Federle, Empowerment, supra note 105, at

1661-63.148. Recommendations of the Conference on Ethical Issues in the Legal Representa-

tion of Children, 64 Fordham L. Rev. 1301, 1301-02 (1996).149. Indeed, there is much to be said for the particular competency of the Court-

Appointed Special Advocate to perform better in that role than an attorney. Seesupra text accompanying notes 79-82; see also Rebecca Heartz, Guardians Ad Litemin Child Abuse and Neglect Proceedings: Clarifying the Roles to Improve Effective-ness, 27 Fain. L.Q. 327, 338-41 (1993) (noting that lay volunteers are more effectivethan attorneys as advocates for children).

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legal system to children that CASA volunteers probably receive moreand better education in representing children and their interests thando the lawyers. The many recent sets of standards providing for train-ing and education prior to being eligible for appointment must beheeded as seriously as the definition of roles.150 A great deal morefocus needs to be placed on the interviewing and counseling of chil-dren as a central part of the lawyer's role in representing children.' 5'

Lawyers also need to be sensitized about child-centered decision mak-ing, 52 child development,'153 and family dynamics,' 54 so they will notgrudgingly trudge off to so-called "touchy, feely" continuing legal edu-cation programs, grumbling all the time.

Once the duties of attorneys have been defined with some relativedegree of precision, the more difficult task that remains are the moni-toring and accountability functions in policing representation of chil-dren. This takes us inevitably beyond the intellectual exercise of roledefinition into the more tenuous task of effective implementation.

VII. ENFORCEMENT OF THE COMPETENCY OF LAWYERS FOR

CHILDREN

A. Lawsuits and the Immunity Doctrine

Federal and state courts have generally ruled against the-civil liabil-ity of GALs and counsel in cases involving the representation of chil-dren in a variety of hearings, including child protection proceedings.Like with judges, witnesses, police officers, prosecutors, probation of-ficers, and social workers, most federal courts have accorded lawyersfor children, especially GALs, quasi-judicial status and held them tobe immune from civil liability under 42 United States Code § 1983. InKurzawa v. Mueller,'55 for example, the Sixth Circuit Court of Ap-peals held that a GAL acting in the best interests of a child is clearlywithin the judicial process and is entitled to immunity. 56 The courtstated: "A guardian ad litem must.., be able to function without theworry of possible later harassment and intimidation from dissatisfiedparents.... A failure to grant immunity would hamper the duties of aguardian ad litem in his role as advocate for the child in judicial pro-

150. See Va. Code Ann. § 16.1-266.1 (Cum. Supp. 1995) (requiring the developmentof training for lawyers who serve as GALs representing children in Virginia, and man-dating the maintenance of a list of qualified attorneys).

151. See Nancy W. Perry & Larry L. Teply, Interviewing, Counseling, and In-CourtExamination of Children: Practical Approaches for Attorneys, 18 Creighton L. Rev.1369 (1985).

152. Id- at 1423-25.153. See id. at 1371-75 (providing an overview of child development within the con-

text of counseling a child).154. Id at 1415-17.155. 732 F.2d 1456 (6th Cir. 1984).156. Id. at 1458.

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ceedings."'157 In Myers v. Morris,5 ' the Eighth Circuit Court of Ap-peals similarly held that "nonjudicial persons who fulfill quasi-judicialfunctions intimately related to the judicial process have absolute im-munity for damage claims arising from their performance of the dele-gated functions,' 159 such as when questioning children, testifying incourt, and providing reports and recommendations to the familycourt. 6 ° The court reasoned that GALs were appointed by the court"to fulfill quasi-judicial responsibilities under court direction... [pur-suant to] its statutory authority to seek the assistance of experts,' 6 'therefore they should be accorded the same judicial protection. Thecourt in Myers also stated in dicta, however, that if a GAL's conductwere to fall outside the scope of their official duties, the guardianwould not be protected by absolute immunity 62 Other cases haveruled the same way.' 63

Some other federal courts have refused to grant absolute or quali-fied immunity to GALs when the court determined that their actionswere not within the scope of their judicial duties. In Lenz v. Win-burn,'64 the court held that the GAL was not entitled to either abso-lute or qualified immunity when engaged in activities outside thescope of her authority. 65 In Lenz, the GAL had accompanied a socialworker to the home of a child client, assisted in removing the child's

157. Id. In the case, John Kurzawa, who was blind, and Frances, his visually im-paired wife, had sought assistance from the Department of Social Services with theirson Cass. Id. at 1456. Eventually, the Department successfully petitioned for the ter-mination of the Kurzawa's parental rights. Id. at 1457. The Michigan Court of Ap-peals, however, reversed the Probate Court's decision, and Cass was returned to hisparents. Id. The Kurzawas brought a federal civil rights action, a negligence claim,and a pendent state claim against the Department, a psychiatrist, a psychologist, andthe GAL appointed to represent the best interests of Cass. Id. They brought suitpursuant to a Michigan statute which prohibited discrimination against the handi-capped. Id.

158. 810 F.2d 1437 (8th Cir.), cert. denied, 484 U.S. 828 (1987). This case involvedthe infamous child sexual abuse investigation in Jordan, Minnesota. Id- at 1440. Theinvestigation began with the arrest of one individual who later pleaded guilty to multi-ple counts of child sexual abuse. Id. at 1441. Later, over 13 individuals, includingmany parents and neighbors of the children, were charged with child sexual abuse. Id-Only one case went to trial and the defendant was acquitted. Id. All of the othercharges were thereafter dismissed. Id. Many of the defendants in those cases broughtcivil rights lawsuits against the prosecutor, therapists, social workers, and GALs. Id.

159. Id. at 1466-67.160. Id.; see also McCuen v. Polk County, 893 F.2d. 172, 174 (8th Cir. 1990) (finding

that GAL's actions in preparing and signing a motion for an order to stay a proceed-ing were entitled to absolute immunity).

161. Myers, 810 F.2d at 1467.162. Id. at 1467.163. See, e.g., Gardner v. Parson, 874 F.2d 131, 146 (3d Cir. 1989) (holding that

GALs are absolutely immune when acting as part of the judicial process).164. 51 F.3d 1540 (11th Cir. 1995). Although the GAL had raised absolute immu-

nity as a defense in the trial court, she expressly waived it in the appellate court. IaL at1547 n.5.

165. Id. at 1547.

DEFINING ATTORNEYS' ROLES

personal belongings, and provided comfort to the child while she wasbeing removed from her father's and grandparent's home.'66 In mak-ing its determination that the GAL was not immune, the court reliedupon the Florida Guardian Ad Litem Program Training Manual,which excluded nonjudicially related activities from being within therole of the GAL.'67 The court concluded that although the GALmight "have acted as a compassionate and decent person in decidingto provide support and a 'neutral presence,'" she acted outside thescope of her authority as the child's GAL. 6 ' Likewise, in Oltremari v.Kansas Social & Rehabilitative Service,'6 9 a child brought suit againsther GAL alleging that he had acted outside the scope of his duties andhad acted to her detriment, rather than her best interest, by 1) con-spiring with another attorney to recommend a custody battle to coverthe dysfunctional handling of her case, 2) attempting to influence thejudge, 3) threatening and intimidating witnesses with lawsuits, 4) steal-ing her mother's child support, 5) stopping her therapy, and 6) engag-ing in gender discrimination. 70 The magistrate judge recommendedthat the court overrule the GAL's motion to dismiss because he"ha[d] not shown that he acted solely within the scope of his duties asguardian ad litem. Nor ha[d] he shown that he conducted himselfnon-maliciously and in good faith. Absent such showings, the immu-nity afforded GALs does not attach.' 171 In Kohl v. Murphy172 thecourt held that the GAL was not automatically entitled to immunitywhen he engaged in allegedly nonjudicial acts such as "interviews withthe Cable News Network (CNN), appearing on television interviewshows, and writing an article for Good Housekeeping magazine. '

"173

Recently, the Fourth Circuit Court of Appeals held that a GAL wasentitled to absolute immunity from a § 1983 claim, but could be heldliable to a child client under South Carolina common law. In Flemingv. Asbill,174 the GAL was charged with lying to a judge in open court.The guardian had filed an ex parte affidavit requesting a "pick-up"

order to permit authorities to seize a child client from school for deliv-ery to his grandparents, allegedly lying by saying she did not know thewhereabouts of the child's father. 75 Although the court held she wasabsolutely immune from civil liability under federal law,176 it refused

166. Id. at 1543-44.167. Id. at 1546.168. Id at 1547.169. 871 F. Supp. 1331 (D. Kan. 1994).170. Id. at 1346.171. Id. at 1347.172. 767 F. Supp. 895 (N.D. IMI. 1991).173. Id. at 901.174. 42 F.3d 886 (4th Cir. 1994).175. Id. at 888.176. Id. at 889.

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to dismiss the child's common law claims for negligence against theguardian under state law.'77

Because the empirical evidence clearly demonstrates that not allGALs are adequately performing their duties, some commentatorssuggest that providing near blanket immunity to lawyers underminesthe protection of child clients. One respected writer has observedthat:

By following this immunity doctrine, the court assumes that guardi-ans ad litem are doing their jobs or that appropriate mechanismsexist to challenge them when they do not....

In some cases, the child's attorney does not do a competent job inrepresenting the child's interests. Immunity may become a way ofshieldins guardians ad litem from accountability, even to their ownclients.' 7

B. Monitoring Representation by Judges

Some have asserted that judicial oversight of GALs and attorneys issufficient to assure that they will perform their duties adequately. Inthe event of poor performance, judges have the power to remove aGAL or court-appointed attorney from the case.' 79 The empirical evi-dence and anecdotes, however, suggest that they rarely receive ade-quate supervision from judges. The Final Report on GALs completedfor the United States Department of Health and Human Servicesidentified an apparent lack of accountability and quality control ofguardians. Of the private attorneys questioned, seventy percent re-ported that they were not supervised. s0 Apparently, the attorneysdid not perceive the judges' presence in the courtroom as supervision.Some commentators maintain that judges seldom take action to penal-ize "incompetent [lawyer] performance."''" Others have offered rea-sons for the lack of forcible response by the court to apparentattorney incompetency in child protection proceedings.

The trial judge... may empathize with the lawyer who does notwant to commit a large number of hours to a case at a below-marketrate. The judge also may be concerned with the court's caseload

177. hL at 890. Under state law, a paid GAL could be held liable to a child fornegligent acts during a custody dispute if those acts caused the child damage. Thecircuit court expressed reluctance in applying such a rule to this case, referring to it ascontrary to the trend in other jurisdictions and of debatable wisdom. Id.

178. Haralambie, supra note 42, at 43-44 (citations omitted).179. See, e.g., In re Jaeger's Will, 259 N.W. 842, 846 (Wis. 1935) (stating that the

court should relieve a GAL who cannot perform his duties); Spotts v. Spotts, 55S.W.2d 977, 983 (Mo. 1932) (holding that a GAL is an officer of the court and subjectto its control when he fails in his duties); Parks v. Barnes, 191 S.W. 447,450 (Ky. 1917)(noting that it is the court's duty to remove a GAL when he is ill-suited to representthe interests of the child).

180. Final Report, supra note 19, at 4-11.181. Kelly & Ramsey, Monitoring, supra note 41, at 1224.

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and with the costs of the program that pays the attorney.... [T]hejudge may also feel that little harm can be done since it is thejudge's decision, based on the principle of the best interests of thechild, that ultimately results in the case's disposition.182

Judges, or their designees, also may be unaware of their authority toremove an incompetent attorney or GAL. Judges may be aware thatlawyers "are not prepared or knowledgeable, but continue to appointthem anyway because.., there are no formalized standards for GALperformance."'1 s3 Judges and lawyers alike also are plagued with sys-temic problems, such as huge dockets and caseloads and inadequateresources.'

8 4

Some courts, however, not only have established specific standardsof performance for GAL performance, but have imprinted those stan-dards on the back of each appointment order to assure that the attor-neys comply with them.'8 5 Other judges have reported that they donot tolerate unprepared or ineffective attorneys or GALs, and theywill be reprimanded, removed, or not be reappointed. 8 6 In the caseof In the Interest of MFB,8 7 the Supreme Court of Wyoming, suasponte, admonished a GAL for his poor performance and failure toparticipate in the appeal on his child client's behalf. The court said,

[W]e would remind all members of the bar serving in this capacitythat the guardian ad litem fulfills an essential duty.... [T]he guard-ian ad litem must act with reasonable diligence in the role of anadvocate for the child ... and participate as necessary in all phasesof the process, including subsequent appeals, to insure the rights ofthe client are protected.' 88

The Iowa Court of Appeals, in In the Interest of J.V. and C.W., Jr.,8 9

publicly reprimanded a GAL who was alleged to have provided inef-fective assistance to his child clients. The parents, whose parentalrights had been terminated, claimed "the [GAL] had failed to act in-dependently and had simply adopted the State's position."' 90 Thecourt concluded "[i]t simply is not sufficient for a guardian ad litem tosit back, review the record and the arguments, and arrive at a deci-sion.... Otherwise, the guardian ad litem is merely perfunctory, serv-

182. Id. at 1224-25.183. Shari F. Shink, The Justice System: It Has Forgotten the Children, Colo. Law.

689, 690 (Apr. 1991).184. Id.185. See, e.g., State of Hawaii, Family Court, First Circuit, Order Substituting

Guardian Ad Litem; Jefferson County, Kentucky, Family Court, Division Four, OrderAppointing Guardian Ad Litem.

186. Interviews by Ms. England over a period of time with Michigan and Virginiajuvenile court judges.

187. 860 P.2d 1140 (Wyo. 1993).188. Id. at 1152.189. 464 N.W.2d 887 (Iowa 1991).190. Id. at 891.

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ing only to fulfill arcane, if not empty, requirements of dueprocess."' 191

Unfortunately, many juvenile court judges are unable to take effec-tive action to remove ineffectual GALs, especially in the rural areas.Because of the low pay, attorneys are often unwilling to accept ap-pointments as GALs. Therefore, judges do not have the luxury ofdismissing attorneys because replacements would be difficult to find.Some commentators suggest that "[i]f the rate of compensation is solow that the attorneys view the time spent on the case as a charitablecontribution, they might welcome non-appointment."' 19 The Iowacourt reported in In re J.V.193 that all of the appointed counsel in thecase had candidly discussed the pervasive problem in providing coun-sel for minor children involved in child protection proceedings. 194

Two commentators also suggest that in addition to "a market incen-tive that acts against competence,' 95 some courts may decline to ap-point "active lawyers because they will challenge the way the courtusually handles cases and take up additional court time and re-sources."' 96 The 1983 North Carolina study of attorneys for childrenin child protection proceedings also demonstrates this concern regard-ing attorney independence. 197 The authors concluded that younger,inexperienced attorneys were more able to take critical and independ-ent positions from the court.' 98 These findings suggested to the au-thors that a prerequisite for an effective representation system wouldinclude institutional structures which provided autonomy and inde-pendence for lawyers who represent children in child protection pro-ceedings.199 The same issues are presented in delinquency caseswhere lawyers say that they are sometimes reluctant to file motionsbecause "[j]udges don't like it when you file motions."2 ' A recentmajor study of legal representation in delinquency cases revealed thatsome attorneys were reluctant to challenge judges and that they"opted for a pleasant courtroom experience by keeping in the court'sgood graces."22 '

191. Id. at 893.192. Kelly & Ramsey, Monitoring, supra note 41, at 1221.193. 464 N.W.2d 887 (Iowa Ct. App. 1991).194. Id. at 891; see also Cumbie v. Cumbie, 139 S.E.2d 477, 480 (S.C. 1964) (stating

that it was apparent that the GAL made no effort whatever to protect the interest ofthe minors).

195. Kelly & Ramsey, Monitoring, supra note 41, at 1221.196. Id.197. Kelly & Ramsey, Impact, supra note 51, at 438-39; Kelly & Ramsey, Monitor-

ing, supra note 41, at 1232-40.198. Kelly & Ramsey, Impact, supra note 51, at 438-39; see also Bortner, supra note

90, at 140-43 (comparing legal representation by a public defender with that of aprivate attorney).

199. Kelly & Ramsey, Impact, supra note 51, at 453.200. A Call for Justice, supra note 2, at 32.201. Id. at 52.

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C. Policing by Parents and by Child Clients

Although parents can ask a court to terminate a GAL's representa-tion of their child, and they can appeal a judge's decision, as was dis-cussed above, many of the parents involved in child protectionproceedings are unable to assert effectively their own rights due totheir lack of sophistication and impoverished living conditions.2 °2

Many of these parents have become abusive or negligent because oftheir own experience with poor parenting, severe personal problems,inability to constructively problem solve, or deal with serious situa-tional crises. These parents typically acquiesce to social service andjuvenile court intervention rather than challenge the quality of thelegal representation their children receive or the judges' decisions. Inthe event parents attempt to challenge a GAL's appointment or a ju-dicial decision, it is unlikely that they will be successful. Courts gener-ally will presume, in the absence of specific allegations, that the GALwas attentive to his or her duties rather than negligent.20 3 This pre-sumption may control even when the GAL was not present in thecourtroom at the time of trial.2 4

If children were permitted to initiate actions on their own behalfthey could serve as a possible safeguard against ineffective GAL rep-resentation. "Many of the problems created by unresponsivecaseworkers and guardians ad litem may be avoided by giving childrena formal, independent means of initiating... proceedings. 20 5 Othercommentators acknowledge, however, that children have proven to beineffective in addressing inadequate representation.20 6

Unfortunately, the client in child protection proceedings suffersfrom major limitations with regard to control over the attorney.First, the child client may lack the knowledge necessary to assess thelawyer's performance, to determine that it is inadequate and toknow how to request a new lawyer. Second, since the lawyer's em-ployment typically is controlled by the appointing agency, the mar-ket incentive for the attorney primarily is to perform according tothe agency's expectations, rather than to the client's.207

Even if children possessed the ability to both recognize ineffectiverepresentation and take action, they can be thwarted by judicial hold-ings that prohibit children from initiating court proceedings on their

202. Kelly & Ramsey, Monitoring, supra note 41, at 1220 (arguing that controlmechanisms have been ineffective in child abuse cases due to the low status of casesinvolving powerless and unsophisticated clients).

203. In re Adoption of PJ.K., 359 S.W.2d 360, 367-68 (Mo. Ct. App. 1962).204. See Meyers v. Smith, 349 S.W.2d 412, 414 (Mo. Ct. App. 1961).205. Christina D. Sommer, Note, Empowering Children: Granting Foster Children

the Right to Initiate Parental Rights Termination Proceedings, 79 Cornell L. Rev. 1200,1228 (1994) (footnote omitted).

206. Kelly & Ramsey, Monitoring, supra note 41, at 1223; Haralambie, supra note42, at 44.

207. Kelly & Ramsey, Monitoring, supra note 41, at 1220 (footnotes omitted).

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own behalf, or by GALs who oppose their child clients' requests forindependent counsel. In Kingsley v. Kingsley,2 °8 the court denied achild the right independently to initiate a termination of parentalrights proceeding against his mother.209 The court in In re A.W.211however, did permit a teenage girl's request in a sexual abuse case forthe appointment of independent counsel when the child's wishes con-flicted with what her public guardian represented to be in her "bestinterests."'2 1' Because children are not able to address effectively theproblems of inadequate representation, some commentators suggestthat perhaps they can be addressed best through professional associa-tions and standards.212

D. The Court's Ability to Reject Recommendations

Another possible safeguard resides in the fact that the court is notbound by, and need not accept, the recommendations of the GAL.This possible safeguard, however, is negated by the empirical evidencediscussed above that suggests that GALs, especially private attorneys,rarely make meaningful recommendations to the court. Often theGAL's recommendations merely parrot the department of social ser-vice's recommendations in abuse and neglect cases, when they shouldbe challenging the department's recommendations vigorously. Stud-ies also have shown that due to large dockets, inadequate time, andscarce resources, a significant number of child protection proceedingsare decided during quick and brief hearings.213 It is of no conse-quence to the child that a GAL's recommendation can be ignored if itoccurs in the context of a brief inattentive hearing. This inability toprovide close attention to children involved in child protection pro-ceedings can have tragic results.

In one urban juvenile court, a court official, the parent's attorney,the child's independent counsel, and a social services attorney allagreed after a brief hearing to return a three-month-old baby to hismother's care.214 The baby, who had suffered a fracture to his rightleg and had evidence of old fractures to his arm and shoulder, wasreturned to his mother even though the hospital staff, after witnessingthe mother shaking and throwing the baby into his hospital crib, sus-

208. 623 So. 2d 780 (Fla. Dist. Ct. App. 1993).209. Id. at 790.210. 618 N.E.2d 729 (MII. App. Ct. 1993). The public guardian had appealed a lower

court's ruling granting the girl's request to substitute "guardian ad litem" representa-tion for independent counsel. The public guardian believed that the girl was manipu-lated into making the request. I.L at 733.

211. Id. at 734.212. Haralambie, supra note 42, at 44.213. Duquette & Ramsey, Lay Volunteers, supra note 53, at 348.214. Conversation by Ms. England during February 1992, with a supervising attor-

ney who wished to remain anonymous.

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pected child abuse.2"- A psychologist also stated unequivocally in hisreport that, because the mother was incapable of caring for him, thebaby should not be returned home.216 Although the court and theattorneys later stated that the psychologist's report had not beenmade available to them, a supervising staff attorney maintained thatall of the parties, as well as the court, had copies of the psychologist'sreport.217 According to this supervisor, the report was either over-looked in the rush to expedite a busy docket or ignored.21 8 Shortlyafter the baby was returned to his mother, protective services caseworkers were unable to locate him.219 Several years later he is stillmissing and presumed to be dead. 0

E. Professional Ethics as a Safeguard

Although attorney activities are regulated by the ABA Model Codeof Professional Responsibility and the Model Rules of ProfessionalResponsibility, commentators have observed that neither the Codenor the Rules adequately address the special problems of child advo-cates."' Even the Juvenile Justice Standards Relating to Counsel forPrivate Parties are said not to "address with adequate specificity thepractical conflicts of interest and ethical questions that regularly arisein the context of representing children, particularly in cases related tochild abuse and neglect." 2z Even if the regulations provided clearguidelines for the representation of children, some experts suggest ad-equate representation of children would continue to be elusive. Theycontend that empirical studies and case examples have demonstratedthat individual members of the bar are frequently unable to regulatethemselves, and that a "flexible code of ethics" appears to "justify aless than competent performance in representation of children, sinceattorneys in these cases typically view themselves as underpaid." 3

Commentators have suggested that there is a clear need for addi-tional regulations in the representation of poor and powerless cli-ents. 24 Given the inability of the bar, the judiciary, and clients tomonitor effectively the performance of attorneys in child protectionproceedings, these commentators argue for the establishment of moni-toring programs to evaluate the quality of child representation.2 s AsKelly and Ramsey have urged, "A well-designed monitoring and eval-

215. Id.216. Id.217. Id218. Id.219. Id220. Id-221. Haralambie, supra note 42, at 24.222. Davidson, supra note 42, at xiii.223. Kelly & Ramsey, Monitoring, supra note 41, at 1223.224. Id. at 1218.225. Id. at 1225.

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uation program can serve not only to deter inadequate work, but alsocan be extremely useful to attorneys because the development of sucha system demands that standards for attorney performance and pro-gram goals be clearly defined and readily accessible."226

CONCLUSION

Although many attorneys do provide aggressive and effective advo-cacy on behalf of their child clients in court proceedings, the numbersof children who are not provided quality representation are substan-tial. Effective and aggressive representation of children in legal pro-ceedings is "within our reach." '227 Many child advocates, judges,attorneys, probation officers, and CASA volunteers already knowwhat works. The improvement of the quality of representation of chil-dren, however, must include both a systemic and an individual ap-proach. A systemic approach must include the identification andenforcement of clearly defined roles and standards for the representa-tion of children. The Fordhamn Conference on Ethical Issues in theRepresentation of Children, and the products of its deliberations con-tained in these pages, may assist in defining those roles and standardsmore precisely and carefully. The Conference Recommendations,when combined with other standards and a plethora of well-designedtraining programs, may serve to facilitate judges, lawyers, and otherchild advocates in assuring that children are provided proper anddedicated representation. Rather than "reinventing the wheel," theymerely need to select one that best meets their community's needs.

Many commentators would urge that a particular role (advocatecounsel over GAL, or attorney over CASA volunteer) should beadopted or that a particular set of standards should be implementeduniformly throughout the country. In the absence of a federal pro-scription, however, and given that a substantial amount of representa-tion of children currently occurs within a vacuum, the promptimplementation of well-chosen roles and standards should take prece-dence over the arduous, if not impossible, task of attainment of uni-formity. Once the roles and accompanying standards are elected,monitoring devices, either through the courts, bar associations, orother review mechanisms to assure the proper implementation ofthese roles and standards must be implemented. Finally, those factorsthat contribute to unmanageable dockets, large caseloads, and inade-quate reimbursement of legal counsel and GALs must be identifiedand remedied. Obviously, budget constraints and legislators' reluc-tance to allocate funds to legal services for children will be a major

226. Id. Kelly & Ramsey urge that to be effective the monitoring and evaluationprograms should be inclusive and provide sanctions and control. Id. The systemshould be self-starting, rather than simply triggered by referrals. Id. at 1225-31.

227. Lisbeth B. Schorr & Daniel Schorr, Within Our Reach: Breaking the Cycle ofDisadvantage (1989).

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barrier. Without adequate resources to support the implementationof these roles and standards, however, representation of children inlegal proceedings, often designed for their protection, is unlikely toimprove.

Individual attorneys, bar associations, CASA volunteers, and otherchild advocates also should contribute to the improvement of childrepresentation in court proceedings. First, these individuals andgroups must make a personal and professional commitment to providechildren with quality representation. In particular, private attorneysshould not accept appointments if they are not willing or able todevote the necessary time to perform their duties properly. Staff at-torneys should challenge thefr agency structures that permit excessivecaseloads, making it impossible to provide individual children effec-tive legal representation. CASA volunteers and other child advocatesshould only agree to volunteer if they can make a substantial commit-ment of time to their child clients. All of these individuals should per-sonally assure that they attend the necessary training programs toguarantee that they are knowledgeable and qualified to perform theirlegal duties.

The American Bar Association, in its landmark report America'sChildren at Risk: A National Agenda for Legal Action, 2 stated thatwhich may be obvious but is seldom observed:

Even when children are represented, the representation they re-ceive is sometimes inadequate.... Children's cases are often 'processed,' not advocated, and toofrequently children's interests are poorly represented. In the pastdecades, courts have been increasingly inundated with cases con-cerning family matters; rarely have -resources for competent repre-sentation or services grown to meet the expanded needs.... Meaningful protection of children's rights requires that childrenbe represented by highly skilled counsel at critical stages of criticalproceedings. Competent professional representation in proceedingsthat involve children is vital in a system where decisions about chil-dren's rights and liberties and those of their parents are decided.229

Thousands more pages can, and perhaps shall, be written regardingthe appropriate role for attorneys or others representing children inlegal proceedings, but unless society and the legal profession are wil-ing to provide truly competent and highly committed lawyers and layadvocates, the only consequence of these continuing efforts will bemore dead trees.

228. ABA, America's Children at Risk: A National Agenda for Legal Action(1993).

229. Id. at 7.

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